Institutio Oratoria

Quintilian

Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.

But it would be waste of time to expatiate on one controversial theme. I would lay it down as a general rule that an orator should never put forward a plea that is tantamount to collusion, and I cannot imagine a lawsuit arising in which both parties have the same design, nor conceive that any man who wishes to live could be such a fool as to put forward an absurd plea for death, when he might refrain from pleading for it at all. [*]( The father does not wish to die, but merely to bring odium on his son, i.e. he is saying one thing and meaning another, for his real desire is to save his life. Consequently, despite their quarrel, both parties are aiming at the same thing, the saving of the father, while the father's plea is practically tantamount to collusion ( praevaricatio ) with his opponent. ) I do not, however,

deny that there are controversial themes of this kind where figures may legitimately be employed, as, for example, the following:

A man was accused of unnatural murder on the ground that he had killed his brother, and it seemed probable that he would be condemned. His father gave evidence in his defence, stating that the murder had been committed on his orders. The son was acquitted, but disinherited by the
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father.

For in this case he does not pardon his son entirely, but cannot openly withdraw the evidence that he gave in the first trial, and while he does not inflict any worse penalty than disinheritance, he does not shrink from that. Further, the employment of the figure tells more heavily against the father than is fair and less against the son. [*]( The sense is quite uncertain. The simplest interpretation is perhaps that the father's action and the figura by which he defends himself show that his evidence in the previous trial was false. The son has been acquitted on the father's evidence, and the father by punishing him has put himself in a hopelessly false position. )

But, while no one ever speaks against the view which he wishes to prevail, he may wish something of greater importance than what he actually says. Thus the disinherited son who asks his father to take back another son whom he had exposed, and who had been brought up by himself, on payment for his maintenance, while he may prefer that he himself should be reinstated, may all the same be perfectly sincere in his demand on behalf of his brother. Again, a kind of tacit hint may be employed, which,

while demanding the utmost rigour of the law from the judges, suggests a loophole for clemency, not openly, for that would imply a pledge on our part, but by giving a plausible suspicion of our meaning. This device is employed in a number of controversial themes, among them the following.

A ravisher, unless within thirty days he secure pardon both from his own father and the father of the ravished girl, shall be put to death. A man who has succeeded in securing pardon from the father of the girl, but not from his own, accuses the latter of madness.

Here if the father pledges himself to pardon him, the dispute falls to the ground. If, on the other hand, he holds out no hope of pardon, though he will not necessarily be regarded as mad, he will certainly give the impression of cruelty and will prejudice the judge against him. Latro

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therefore showed admirable skill when he made the son say,

You will kill me then?

and the father reply,

Yes, if I can.

[*](Si potero is ambiguous. It might mean If I have the heart to do so. Here lies the loophole for clemency to which Quintilian has referred. ) The elder Gallio treats the theme with greater tenderness, as was natural to a man of his disposition. He makes the father say,

Be firm, my heart, be firm. Yesterday you were made of sterner stuff.

Akin to this are those figures of which the Greeks are so fond, by means of which they give gentle expression to unpleasing facts. Themistocles, for example, is believed to have urged the Athenians to commit their city to the protection of heaven, because to urge them to abandon it would have been too brutal an expression. Again the statesman [*](Unknown.) who advised that certain golden images of Victory should be melted down as a contribution to the war funds, modified his words by saying that they should make a proper use of their victories. But all such devices which consist in saying one thing, while intending something else to be understood, have a strong resemblance to allegory.

It has also been asked how figures may best be met. Some hold that they should always be exposed by the antagonist, just as hidden ulcers are laid open by the surgeon. It is true that this is often the right course, being the only means of refuting the charges which have been brought against us, and this is more especially the case when the question turns on the very point at which the figures are directed. But when the figures are merely employed as vehicles of abuse, it will sometimes even be wisest to show that we have a clear conscience by ignoring them.